Valenzuela-Gonzalez v. U.S. Dist. Court for Dist. of Arizona

• Decision Date: 27 July 1990
• Docket Number: No. 90-70350,VALENZUELA-GONZALE,P,90-70350
• Parties: Davidetitioner, v. UNITED STATES DISTRICT COURT FOR the DISTRICT OF ARIZONA, Respondent, United States of America, Real Party in Interest.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1276

915 F.2d 1276

59 USLW 2232

David VALENZUELA-GONZALEZ, Petitioner, v. UNITED STATES DISTRICT COURT FOR the DISTRICT OF ARIZONA, Respondent United States of America, Real Party in Interest.

No. 90-70350.

United States Court of Appeals, Ninth Circuit.

Submitted July 27, 1990. ^*

Decided Sept. 27, 1990.

Robert McWhirter, Asst. Federal Public Defender, Phoenix, Ariz., for petitioner.

Janet L. Patterson, Asst. U.S. Atty., Phoenix, Ariz., for respondent.

Petition for Writ of Mandamus to the United States District Court for the District of Arizona.

Before NELSON, REINHARDT and BEEZER, Circuit Judges.

BEEZER, Circuit Judge:

Valenzuela-Gonzalez petitions for a writ of mandamus vacating the district court's order that his arraignment be conducted by closed circuit television. We grant the writ and vacate the order of the district court.

I

Valenzuela-Gonzalez is a federal prisoner who was arrested in May, 1990. Upon his arrest, he appeared before a federal magistrate of the District of Arizona, who scheduled his arraignment for July, 1990. His trial was set for August, 1990.

In June, 1990, the United States District Court for the District of Arizona issued its General Order No. 190, ¹ amending the local rules to allow arraignment by closed circuit television. ² Shortly thereafter, the magistrate ordered that Valenzuela-Gonzalez's arraignment be conducted by closed circuit television.

Two days before his scheduled arraignment, Valenzuela-Gonzalez moved the district court for an order requiring that his arraignment be conducted in person. The district court heard the motion on an expedited basis on the day the arraignment was scheduled. The district court ruled that arraignment by means of audiovisual interactive technology did not violate the fifth or sixth amendments or Fed.R.Crim.P. 43. ³ Valenzuela-Gonzalez immediately sought an order staying the district court's order, which we granted the next day. He now petitions for a writ of mandamus vacating the district court's order in this case.

This petition came on for hearing before us on July 27, 1990. We issued our order granting the writ and vacating the district court's order on July 27, 1990. ⁴ This opinion follows.

II

We must first determine whether we have jurisdiction to issue the writ that is requested. Under the All Writs Act, 28 U.S.C. Sec. 1651(a), ⁵ we unquestionably have the power to issue, in our discretion, a writ of mandamus in this case. Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 25, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943); United States v. Harper, 729 F.2d 1216, 1221 (9th Cir.1984). We must nevertheless determine whether mandamus is a proper remedy here.

The government first argues that we lack jurisdiction to vacate General Order No. 190 because it was not entered in a case involving the specific petitioner before us. Valenzuela-Gonzalez does not contest this argument. We need not reach it in any event, for Valenzuela-Gonzalez has not requested us to review General Order No. 190. He requests only that we vacate the district court's order in his case. Without accepting the government's argument, therefore, we review the district court's order only to the extent it concerns Valenzuela-Gonzalez.

The government next argues that we lack jurisdiction to issue a writ of mandamus vacating the order concerning Valenzuela-Gonzalez because his arraignment has not yet taken place. Because the harm complained of has not yet occurred, the government contends, "nothing has occurred that the defense can object to." Furthermore, the government suggests that we cannot review the district court's decision until we know that "the arraignment would in fact proceed the way the court anticipated." Absent these two circumstances, the government argues, our opinion would be merely advisory in violation of Article III of the United States Constitution. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-41, 57 S.Ct. 461, 463-64, 81 L.Ed. 617 (1937).

We disagree. First, we may easily evaluate the proposed arraignment procedure, since Valenzuela-Gonzalez's two codefendants have already been arraigned under the exact procedures challenged by Valenzuela-Gonzalez. Our evaluation of the scheme as it affects Valenzuela-Gonzalez is not contingent upon any uncertain event that might not occur. Thomas v. Union Carbide, 473 U.S. 568, 580-81, 105 S.Ct. 3325, 3332-33, 87 L.Ed.2d 409 (1985). Second, the standards for granting a writ of mandamus do not require that the challenged order be carried out before the writ can issue. See, e.g., Schlagenhauf v. Holden, 379 U.S. 104, 111, 85 S.Ct. 234, 238, 13 L.Ed.2d 152 (1964) (excessively oppressive discovery order); Admiral Ins. Co. v. United States Dist. Court, 881 F.2d 1486, 1491 (9th Cir.1989) (assertion of absolute privilege to discovery order). But for our stay, the harm Valenzuela-Gonzalez complains of is imminent. We conclude that the district court's order satisfies the "case or controversy" requirement of Article III.

The government concedes that the petition for writ of mandamus is otherwise an appropriate procedure for reviewing the order challenged here. We agree. The writ of mandamus is an extraordinary remedy reserved for situations where a trial court has exceeded its authority. Kerr v. United States, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976); Bauman v. United States, 557 F.2d 650, 654-55 (9th Cir.1977). We have adopted five guidelines for determining if a writ of mandamus should issue:

(1) The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires.

(2) The petitioner will be damaged or prejudiced in a way not correctable on appeal.

(3) The district court's order is clearly erroneous as a matter of law.

(4) The district court's order is an oft-repeated error, or manifests a persistent disregard of the federal rules.

(5) The district court's order raises new and important problems, or issues of law of first impression.

In re Allen, 896 F.2d 416, 419-20 (9th Cir.1990) (quoting Bauman, 557 F.2d at 654-55). No single factor is determinative, Bauman, 557 F.2d at 655, and all five factors need not be satisfied at once. In re Cement Antitrust Litigation, 688 F.2d 1297, 1301 (9th Cir.1982), aff'd mem. sub nom. Arizona v. United States Dist. Court, 459 U.S. 1191, 103 S.Ct. 1173, 75 L.Ed.2d 425 (1983).

Mandamus is particularly appropriate when we are called upon to determine the construction of a federal procedural rule in a new context. Schlagenhauf, 379 U.S. at 111, 85 S.Ct. at 238 (Fed.R.Civ.P. 35); La Buy v. Howes Leather Co., 352 U.S. 249, 251, 77 S.Ct. 309, 311, 1 L.Ed.2d 290 (1957) (Fed.R.Civ.P. 53); United States v. Lasker, 481 F.2d 229, 235-36 (2d Cir.1973) (Fed.R.Crim.P. 48), cert. denied, 415 U.S. 975, 94 S.Ct. 1560, 39 L.Ed.2d 871 (1974). Such a situation presents the rare case where both the fourth and fifth Bauman factors are satisfied: we are presented with a novel question of law that is simultaneously likely to be "oft-repeated." Bauman, 557 F.2d at 655; see Harper, 729 F.2d at 1222. In addition, the first Bauman factor is satisfied here: since Valenzuela-Gonzalez's notice of appeal has not been certified for interlocutory appeal under 28 U.S.C. Sec. 1292(b), he has no adequate means to obtain review. We conclude that a petition for writ of mandamus is an appropriate method for reviewing the district court's order. ⁶

We determine de novo whether the writ should issue. Seattle Times v. United States Dist. Court, 845 F.2d 1513, 1515 (9th Cir.1988). Before the writ may issue, we must be "firmly convinced that the district court has erred," id., and that the petitioner's right to the writ is "clear and indisputable." Kerr, 426 U.S. at 403, 96 S.Ct. at 2124.

III

Valenzuela-Gonzalez argues first that the district court's order must be vacated because it violates his rights under the fifth and sixth amendments to the United States Constitution. The Supreme Court has long recognized that the accused has a right to be present at all critical stages of the proceeding against him. Kentucky v. Stincer, 482 U.S. 730, 744-45, 107 S.Ct. 2658, 2666-67, 96 L.Ed.2d 631 (1987); Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 332-33, 78 L.Ed. 674 (1934); United States v. Lewis, 146 U.S. 370, 372, 13 S.Ct. 136, 137, 36 L.Ed. 1011 (1892). Arraignment, "far from a mere formalism," is a stage important enough to entitle the accused to the presence of counsel. Kirby v. Illinois, 406 U.S. 682, 689-90, 92 S.Ct. 1877, 1882-83, 32 L.Ed.2d 411 (1972); Coleman v. Alabama, 399 U.S. 1, 7, 90 S.Ct. 1999, 2002, 26 L.Ed.2d 387 (1970); Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 59, 77 L.Ed. 158 (1932).

Nevertheless, whether the fifth and sixth amendments prohibit the use of closed circuit television at an otherwise proper arraignment is not immediately apparent. Arraignment is not a procedure required by the due process clause of the fifth amendment. Garland v. Washington, 232 U.S. 642, 645, 34 S.Ct. 456, 457, 58 L.Ed. 772 (1914); United States v. Coffman, 567 F.2d 960 (10th Cir.1977). The sixth amendment right to confront witnesses is not implicated, since there are no witnesses. Snyder, 291 U.S. at 107, 54 S.Ct. at 332. Moreover, the Supreme Court has held that closed circuit television may satisfy the confrontation clause in limited circumstances. Maryland v. Craig, --- U.S. ----, 110 S.Ct. 3157, 3170, 111 L.Ed.2d 666 (1990). ⁷

We need not resolve this question, however, for the presence of the defendant at arraignment is required under two federal rules of criminal procedure, Fed.R.Crim.P. 10 ⁸ and Fed.R.Crim.P. 43(a). ⁹ The protection of these rules is broader than the constitution provides. United States v. Gordon, 829 F.2d 119, 123-24 (D.C.Cir.1987); United States v. Christopher, 700 F.2d 1253, 1261-62 (9th Cir.), cert. denied, 461 U.S. 960, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983). It is the rule in this circuit that...